When SC turned down an ordinance

As politicians seek an ordinance to solve the jallikatu imbroglio, it is worth our while to remember a time when a similar ploy to gag information about politicians was nullified by the apex court

As of this writing, the Jallikattu agitation is at its peak. Millions of people in Tamil Nadu have taken to the streets to protest the ban on Jallikattu. The ban on this cultural practice of man fighting abull is thanks to a decision of the Supreme Court. That decision was in a case brought to the court by PETA, an organisation that fights for animal rights. This is not the first time that a Supreme Court verdict has brought to the forefront a conflict between tradition and activists fighting for human and animal rights. The Shah Bano case, too, was a confrontation between community practice and human right of a divorcee.

The political solution to this public demand in case of Jallikattu is to pass an ordinance, which basically overturns the Supreme Court ban. The job of the apex court is to simply interpret statutes and constitution provisions. Its decision to ban has to be seen in that context, although some people believe that the Court is too activist when it enters the arena of traditions, religious practices or even cricket administration! In the Shah Bano case, the apex court’s verdict was overturned by Parliament (which had the brute majority of the ruling party). In this case, too, it is quite likely that we will see politics and people power trumping the decision of the judiciary. This, after all, is the way robust democracies work.

So long as the process is robust and civilized, it should be ok. After all in a democracy, the voice of “the people” is supreme. Unfortunately, there is a thin dividing line between robust democracy and mobocracy, or mere capitulation by politicians to mass hysteria. Or, indeed whipping up mass hysteria to generate short-term political advantage.

It is, therefore, worth recalling incidents when the brute power of elected governments was thwarted by sound legal principles, and even the power of ordinance was blunted by the apex court.

Of course, the most celebrated case is the Keshavanand Bharti case, fought so successfully by Nani Palkhiwala, which has ever since protected the basic structure of the Constitution of India. It cannot be amended by the legislature. A more recent example is from May 2002, when the Supreme Court decreed that all candidates who stand for elections must declare, via sworn affidavits, their criminal antecedents (if any), their wealth (ill begotten or not), and their education status. This was based on the voters’ right to know before they cast their vote.

The Union Cabinet in its wisdom sought to nullify this verdict through a hastily drawn up ordinance in June 2002. What was amazing is that the government could forge a multi-party consensus, across 21different political parties, to defeat the Supreme Court judgment. It is as though the entire political establishment did not want to disclose any information, or details of their candidates.

But citizen activists across the nation got together and asked the then President Abdul Kalam to refuse to sign that ordinance. He had to sign since the Cabinet refused to budge, or dilute its ordinance. Hence, this ordinance (even before it could be presented to Parliament) was challenged in the Supreme Court as being un-constitutional.

Denying information to voters was akin to denying freedom of expression (as casting a vote is like expressing yourself). Remember the Right to Information was passed in 2005, three years later. In March 2003, the Supreme Court ruled that the said ordinance seeking to gag information about candidates was unconstitutional and hence null and void.

Thankfully, by then even the political parties had lost enthusiasm in supporting it as they sensed the public mood was in favour of more transparency. The rest is history. Of course to this day, the right to information does not apply to all political parties. This is the arena of governance and electoral reforms, where matters are more clearcut.

Hence the ordinance was defeated. As for Jallikattu, it’s a wholly different animal!

■ Ajit Ranade On the wheels that make Mumbai run – money and economy

■ Unfortunately, there is a thin dividing line between robust democracy and mobocracy, or mere capitulation by politicians to mass hysteria

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